The Explainer: May it please the Court

A scene from one of my favorite political movies, “Advice and Consent.” A wily Senator pursuing familiar tactics. Now it’s gotten the Senate in hot water.

This morning, lawyers representing the Senate went to the Supreme Court to file a motion for reconsideration. They were accompanied by citizens worried over the consequences of the high court’s decision being upheld.

You’ve read, heard, and watched the lawyers debate the merits or demerits of the decision to death. But what’s been lacking is why the lawyers –and even wily Senators- are so alarmed.

The roots of constitutional paranoia, is our topic for tonight. This is the Explainer and I’m Manolo Quezon.

Fr. Joaquin Bernas declared it a “dangerously crippling decision,” as it limits the ability of the legislature to ask questions of executive officials.

Why legal minds –including, it seems, some members of the Supreme Court itself- are so bothered by this decision, can only be understood with reference to the 1973 actions of the court.

On March 31 an anniversary came and went, with little public attention paid to it. The anniversary was of the handing down of a decision, Javellana v. Executive Secretary, by the Supreme Court on March 31, 1973.

Fr. Bernas, one of the drafters of the present Philippine Constitution, and who wielded great influence in the Aquino government which decided to abandon the previous constitution, tells us, in a nutshell, why that decision was so historic. Pat, can you read what he wrote?

A majority of the Supreme Court were of the view that the Constitution proposed by the 1971 Constitutional Convention was not ratified in accordance with the requirements of the 1935 Constitution. In the end, however the Court accepted the cryptic conclusion that the new Constitution was already in effect….

The 1935 Constitution, under which Marcos became only the second president to elected twice, and according to the provisions of which he imposed martial law on September 23, 1972, provided that a new constitution would require a formal plebiscite.

Marcos, realizing the public was not inclined to approve a new charter in secret ballot, arranged a rigged public referendum to approve a constitution nominally approved by a Constitutional Convention elected in 1971 but which Marcos had single-handedly written.

Ferdinand Marcos, in his diary, put forward what he hoped would be posterity’s explanation for why the Supreme Court acted the way it did.

You know Pat, and our viewers, we’ve covered some of these entries before, but it’s essential for us to revisit them again.

In an entry dated September 24, 1972, he wrote, Pat?

I asked Justices Claudo Teehangkee, Antonio Barredo, Felix Macasiar and Felix Antonio to see us. They insisted that the government should submit to the Supreme Court for the Court to review the constitutionality of the proclamation of martial law, Proclamation No. 1081.

He went on to recount, Pat?

So I told them in the presence of Secs. Ponce Enrile and Vicente Abad Santo as well as Sol. Gen. Estelito Mendoza that if necessary I would formally declare the establishment of a revolutionary government so that I can formally disregard the actions of the Supreme Court.

With a kind of malicious glee, he then described how the Supreme Court folded in the face of his bluff: Pat?

They insisted that we retain a color of constitutionality for everything that we do.

The next day, he crowed in his diary,

…It is indeed gratifying that everyone now finds or discovers I am some kind of a hero!

And made this (very true) observation:

There is nothing as successful as success!

Yet Marcos achieved a victory in terms of any potential challenge to the legality of his imposing martial law; but he continued to worry about a challenge to his promulgating a new constitution. This was because of the consensus among the Justices that Bernas described in his book.

On January 27, 1973, Marcos wrote in his diary,

…Chief Justice Concepcion is sick in the hospital and may not be able to attend the dinner on Monday.” According to Marcos, “It is apparent that the other justices are in favor of dismissing the petition questioning the validity of the ratification of the New Constitution.

And again, writing for posterity, he painted a picture of a court more concerned about the jobs of the Justices than any real point of law:

But they want to be assured of their continuance in office under the new constitution with new appointments…

So Marcos said he basically told the Justices they’d been overtaken by events:

But everybody else has accepted the new constitution and as we put it in the dinner conference we held tonight, how do the justices expect us to ‘unscramble the eggs already scrambled’?

And in a note to himself, he reminded himself to treat the Justice he viewed with contempt , with kid gloves:

We have to handle them with finesse as the Supreme Court might become the rallying point of the opponents of reform.

On January 29, 1973 he patted himself on the back in his diary,

The dinner with the Justices without Chief Justice Concepcion who is sick in Sto. Tomas Hospital turned out well.

You can tell he was gloating when wrote,

Casually I turned into the problems the country was facing requiring an unquestioned position of leadership for negotiations. As Justice Fred Ruiz Castro said, ‘I get the message, Mr. President.’

By April 2, he was able to write, matter-of-factly,

…Dr. de Vega has just written me that the Supreme Court has resolved the pending suit in the New Constitution and as of this moment is distributing its decision in favor of our position – 6-4.

Marcos never caused the publication of his diary during his lifetime, but the image he proposed, of cowardly and conniving justices, is one the public adopted anyway. Javellana v. Executive Secretary has gone down in Philippine history as a defining moment. One in which a president’s efforts to grab power succeeded because of the timidity of the only remaining institution left to challenge it lost its nerve.

One of the present Justices of the Supreme Court, Antonio Carpio, writing last January in Newsbreak Magazine, recalls,

I was a second year student at the U.P. College of Law when the Supreme Court handed down Javellana. In my eyes as a law student, the gods of Padre Faura [where the Supreme Court is located], supposedly the last bulwark of democracy in our country, fell from their high pedestals the day they decided Javellana. Now, whenever a major constitutional issue comes up before the Court, I always ask myself and even some of my colleagues, could this be our Javellana…?

The Chief Justice at the time Javellana was decided, Roberto Concepcion, took a leave of absence from his position after the decision was handed down, effectively leaving office 50 days prior to his retirement date. He became a critic of the Marcos government.

When we return, we’ll finish our explanation of why legal minds are nervous about the Supreme Court’s decision, and then, let’s explore whether the present high court can actually change its mind.

II. A dangerously crippling decision

Before she was a golden girl, Betty White did this stint as a senator in “Advice and Consent”. And she pointed to a check and balance over Senate hearings –public scrutiny. The other is, of course, the courts. But what happens when the courts upset the balance?

Among the myths President Marcos successfully pitched, was that the public greeted Martial Law with relief and gratitude. The truth is, Martial Law, while a gamble, could have failed.

President Marcos proclaimed Martial Law on September 23, he’d actually signed it on September 221972, but antedated it to September 21, for good luck.

The Constitutional Convention elected in 1971 had to endure some of its delegates being arrested while others, caught by martial law overseas, in exile. Pressure was applied on the remaining delegates to sign a charter literally hand-written by Marcos himself.

Anyway, as the main decision in Javellana v. Executive Secretary itself chronicles, on November 29, 1972, the Constitutional Convention finished its work, complete with a grinning Diosdado Macapagal handing over the document to Ferdinand Marcos.

The next day, November 30, 1972, Marcos issued a Presidential Decree submitting the proposed constitution to the people for ratification in a plebiscite scheduled on January 15, 1973.

Cases were then filed in court questioning the Marcos decree, on the grounds that the 1935 Constitution could only be replaced by following the constitution’s provisions concerning the ratification of a new charter; among these provisions was that only Congress could call for a plebiscite and appropriate the funds required to hold one.

As the Supreme Court itself noted, meanwhile, on December 17, 1972, Marcos issued an order “temporarily suspending the effects” of Proclamation No. 1081, to allow free and open debate on the proposed charter. The absence of these freedoms had provided the basis for the plebiscite’s being challenged before the court.

But on December 23, 1972, Marcos suddenly announced he was postponing the plebiscite.

What happened?

Recently, political analyst Mon Casiple recounted to me how, in those anxious days, opponents of Marcos had gotten hold of copies of the proposed constitution with notations and amendments in Marcos’s own, distinctive, handwriting; this information as well as efforts undertaken by some of the delegates, suggested to Marcos that if an honest plebiscite were to be held, the proposed constitution would be rejected and presidential elections would have to be held in November, 1973.

Marcos had no intention of going, not after his great autogolpe or self-coup.

Nervous over the possibility that the initiative he’d seized by proclaiming martial law might be lost, he didn’t want his opponents to catch their breath and allow public opinion to rally around institutions such as Congress or the courts.

If Marcos sensed that a free and fair plebiscite would have rejected the proposed 1973 Constitution, and that furthermore, if he knew the Supreme Court was inclined to agree with those who argued only Congress could call for a plebiscite, and appropriate funds for that purpose; and if Marcos knew, further, that if Congress convened, it might start holding inconvenient debates on Martial Law: then he couldn’t allow Congress to convene and he couldn’t allow a free and fair plebiscite.

But if he padlocked Congress and held a sham referendum, there would still be the problem of the Supreme Court declaring him, the man who’d proclaimed the Constitution his “passionate obsession,” essentially an outlaw, a usurper.

But put another way, if the Supreme Court raised no obstacle to his actions, however constitutionally unsound, then ex post facto, the court would legalize what was done extraconstitutionally.

Congress was easily attended to by Marcos: When the idea of convening a special session of Congress to declare Proclamation 1081 null and void was brought up-one of which was said to have taken place in Ninoy’s cell (an unlikely story). The following day the legislative building was occupied by troops who dismantled the offices, and carted away equipment. Someone had squealed or the rooms were bugged.

He then formalized his announcement by issuing General Order No. 20 on January 7, 1973, postponing the plebiscite “until further notice.” He then suspended his suspension of Martial Law!

Then Marcos announced (January 1, 1973) that instead of a plebiscite, “Citizen’s Assemblies” would be convened from February 19 to March 5, 1973; over the next few days the questions to be asked changed; and finally, the date for the assemblies would be January 10-15, 1973. Eventually it emerged that the Citizen’s Assemblies would be asked to ratify the new constitution.

The Court then noted that up to that point, it had refrained from deciding challenges to Marcos’s call for a plebiscite, since the main grounds for the cases was that only Congress could make that call; and Congress, it noted, was due to meet in regular session on January 22, 1973.

The Court tried to deliberate with dispatch, but as the Chief Justice noted in the decision, Pat?

While the case was being heard, on the date last mentioned, at noontime, the Secretary of Justice called on the writer of this opinion and said that, upon instructions of the President, he (the Secretary of Justice) was delivering to him [the writer] a copy of Proclamation No. 1102, which had just been signed by the President. Thereupon, the writer returned to the Session Hall and announced to the Court, … inasmuch as the hearing in connection therewith was still going on and the public there present that the President had, according to information conveyed by the Secretary of Justice, signed said Proclamation No. 1102, earlier that morning.

From the first part of tonight’s show, we know how Marcos handled the Supreme Court. He courted and threatened its members. Chief Justice Concepcion in this extract pointedly observed Marcos also kept the court off-balance.

In the Concepcion court, by some accounts, the crucial votes were provided (in favor of Marcos) by Justices Querube Macalintal and Fred Ruiz Castro, both of whom were later appointed Chief Justice by Marcos.

While Marcos doesn’t really mention Macalintal, we know that after he retired from the high court, he became Marcos’s decorative Speaker of the Batasang Pambansa, while Castro is quoted by Marcos in his diary as being a cooperative kind of fellow.

When it voted on Javellana v. Executive Secretary, essentially, the Supreme Court threw up its hands and pleading that it had been overtaken by events.

Marcos could heave a big sigh of relief knowing that what a legal system ordains, even if not just, enjoys the presumption of regularity.

And this is what the Supreme Court helped Marcos do: it guaranteed that the burden of proof would shift from Marcos to his critics, as far as whether his regime was justified or not. The Chief Justice was so heartbroken he went on leave ahead of the expiration of his term.

It is in the context of Chief Justice Concepcion’s travails that the recent behavior of Chief Justice Puno needs to be understood; and why the public statements of the Chief Justice have been echoed by many lawyers.

In a recent editorial, the Philippine Daily Inquirer said the administration has a policy comparable to three monkeys.

Which says that even prior to the decision, the bureaucracy has already followed the executive’s lead by withholding requests for information.

And finally, hear no evil, in putting forward officials like Deputy Spokesperson Lorelei Fajardo, who is told nothing so she can reveal nothing.

When we return, we’ll ask to Rep. Locsin about his views on executive privilege, the implications of the Supreme Court decision, and whether he’s nervous, too.

III. Interview

Teodoro Locsin, Jr. penned a legal brief prior to the Supreme Court handing down its decision, which he titled “Notes toward a circumspect ruling on executive privilege.” The Palace applauded it; critics compared it to Marcos’s “Notes on the New Society.”

3. Which, by the way, shows that the House rules on impeachment disallowing continuing amendments of impeachment complaints are mentally dishonest and constitutionally infirm so that the Supreme Court should throw out what the former Speaker of the House himself disdained as “a sham complaint” filed for purposes of inoculating the President from the genuine article.

26. …Which is to say that in requesting for presidential privileged communications, the request must be framed on a more or less explicit description of the paper and its relevance to the proceeding where it is to be introduced. The proceedings in our case is a Senate investigation in aid of legislation and the relevance to be demonstrated is in relation to prospective legislation, which, of course, does not and cannot extend to a prosecution under that law which would smack of ex post facto..

27. Yet with the search for truth, except in the most generalized way, and the attainment of justice except in a rhetorical fashion, Congress can have nothing to do. By its partisan nature Congress cannot be objective nor impartial to the interests of its constituents and its own members—even in the stronger case when the House sits in impeachment as The Grand Inquest. In a political contest between the executive and the legislative branches, a judicial determination had best await the political outcome.

IV. My view

Those who cannot remember the past are condemned to repeat it, Santayana famously wrote. There are those who can remember past events, and see their dark shadow looming over our present life.

But you may be asking, tonight we saw how cunning Marcos was, but 2008 is not 1973; the cast of characters is different.

Indeed, they are. The old cliché goes, there’s more than one way to skin a cat. Don’t focus on the skinners, focus on the cat being skinned.

Whether it was by means of martial law or what Newsbreak reported as intense Palace lobbying of the present Supreme Court, our presidents in 1973 and now, had the same objective.

To have a court hand down a decision that would grant the Palace a major victory with immediate and long-lasting effects.

But as former Justice Isagani Cruz said last Sunday, the Court can still reverse itself. It only has to decide whether it loves the law or the Palace, more.